SBW A.1 – 18.1.2010 RECORD OF MEETING OF THE PARLIAMENTARY SELECT COMMITTEE ON CONSTITUTIONAL REVIEW HELD ON MONDAY, 18 TH JANUARY, 2010 AT THE GREAT RIFT VALLEY LODGE, NAIVASHA PRESENT The Hon. Mohamed Abdikadir, MP – Chairman The Hon. Ababu Namwamba, MP; The Hon. Martha Karua, MP; The Hon. Wilfred Ombui, MP; The Hon. Wilfred Ombui, MP; The Hon. Chachu Ganya, MP; The Hon. Mwangi Kiunjuri, MP; The Hon. Danson Mungatana, MP; The Hon. Sophia Abdi Noor, MP; The Hon. (Dr.) Sally Kosgey, MP; The Hon. Amina Abdala, MP; The Hon. Mutula Kilonzo, MP; The Hon. Kambi Kazungu, MP; The Hon. Isaac Ruto, MP; The Hon. James Orengo, MP; The Hon. David Musila, MP; The Hon. Ekwe Ethuro, MP; The Hon. Jeremiah Kioni, MP; The Hon. Millie Odhiambo, MP; The Hon. Musalia Mudavadi, MP; The Hon. Peter Munya, MP; The Hon. Moses Wetangula, MP; The Hon. Charity Ngilu, MP; The Hon. Uhuru Kenyatta, MP; The Hon. J. Nkaisserry, MP; The Hon. W. Samoei Rutto, MP; The Hon. Beth Mugo, MP; ABSENT WITH APOLOGY The Hon. Najib Balala, MP; IN ATTENDANCE NATIONAL ASSEMBLY Mr. Patrick Gichohi - Clerk of the National Assembly Mrs. Consolata Munga - Deputy Director, Committee Services Mr. Jeremiah Nyengenye - Principal Legal Counsel Mr. Paul K. Ngentich - Senior Research Officer Mr. Jeremiah Ndombi - Senior Legal Counsel Mr. Stephen Njenga - First Clerk Assistant Ms. Eunice Gichangi - Senior Legal Counsel Mr. Michael Karuru - Legal Counsel Ms. Mary Mwathi - Hansard Reporter Mr. Said Waldea - Hansard Report Mr. Zakayo Mogere - Second Clerk Assistant Mr. Samuel Njoroge - Second Clerk Assistant Ms. Rose Mudibo - Public Relations Officer (Prayers) (The meeting convened at 9.30 p.m.) The Clerk of the National Assembly (Mr. Gichohi): Good morning, hon. Members. I hope that you had a good night. We have 21 Members of the Committee. I understand that the other four are on the way. Mr. Chairman, Sir, Mr. Vice-Chairman, Sir, Hon. Members of the Committee. Let me take this opportunity to once again welcome to this retreat, which is very crucial to our constitution-making process. According to Section 32(1)(c) of the Constitution of Kenya Review Act, 2008, the Committee is expected to deliberate on the Revised Harmonized Constitution Draft, which is the final draft. The Office of Mr. Speaker has availed a Secretariat from Parliament. We have four senior officers from the Legal Department to assist this Committee. From the Clerks Department, we have the Deputy Director, Committee Services, and other officers. The HANSARD is also here. We also have officers from the Research Department to assist the Committee achieve its mention. Under the provisions of Standing Order No.186, the Speaker has directed me to convey to the Committee the message that in case you need to engage experts, the request should be made to Mr. Speaker and Mr. Speaker will make the necessary decision to facilitate this Committee. Mr. Chairman, Sir, this is a Committee of the House, and you are expected to work within the procedures and provisions of the Standing Orders. Allow me to inform the Committee Members on the documents that are available in your folders as you proceed on this very important exercise. The first document in your folders is the Revised Harmonised Draft Constitution. The folder also contains the Final Report of the Committee of Experts, the Harmonised Draft Constitution, the Wako Draft, the Bomas Draft, the Naivasha Accord, the Constitution of Kenya Review Commission (CKRC) Draft of 2002; the Constitution of Kenya Review Act and the amendments thereof, as well as the Standing Orders. Those documents, among other documents that you will need for this particular workshop, should be available in the folders. We have the programme that we are going to follow in the course of the week, and in the course of next week, because the Committee has a deadline within which to present its final Report to the Committee of Experts (COE). Mr. Chairman, Sir, I do not intend to speak for long. So, allow me to invite the Vice-Chairman of the Committee, the hon. Ababu Namwamba, to make his remarks and invite you to also make your remarks before the Committee starts its work. The Vice-Chairman (Mr. Namwamba): Thank you, Mr. Clerk. Mr. Chairman, Sir, hon. Members. It is my pleasure to have the opportunity to make a few remarks before we commence this very historic exercise. We can say quite literally that the eyes of 40 million Kenyans are trailed on the Great Rift Valley Lodge, Naivasha, from this moment until this exercise closes. We sit here, literally, holding the hopes of a nation and, perhaps, the future of the stability of this nation, too. Many Kenyans out there are waiting with abated breath to see white smoke bellowing out of this lodge. It is a historic responsibility. Hon. Members, as we commence this exercise, I just want to remind you a little history. This Parliamentary Select Committee (PSC) is the Fifth in the long chequered attempt by this country to adopt a new constitution since 1999. In the past, each of our four predecessors has failed to crack this jinx right at the very critical moment – the last one at the very last hurdle when we went to the referendum in November, 2005. On the 17th day of December, 2008, Parliament constituted this Fifth PSC. For over one year, we have carried the responsibility to steer what we have come to call “Agenda Four Reforms.” We have performed exceptionally well, in my humble opinion. We have managed to put together various critical organs for the Agenda Four Reforms. As a Committee, through consensus, we have put together the COE that has given us the draft that we settle down to discuss today. We have put together the Interim Independent Electoral Commission (IDEC), the Interim Independent Boundaries Commission (IBIS) and the Special Tribunal to resolve constitutional disputes. All those tasks have been accomplished by this Committee through an admirable spirit of consensus or give and take. We have hardly had to take a vote on any of these critical decisions. We have sat in this Committee and elected not to act as delegates of our political parties, but rather as humble servants of the people of Kenya. We have taken decisions that have largely mirrored the hopes and aspirations of our land. Today we sit here to tackle, perhaps, the hardest hurdle in the task that Kenyans have bestowed upon us, through the National Assembly: The task of finding a compromise on getting a new constitutional dispensation for our land. I am personally aware that we meet here amidst a lot of scepticism from out there. There are Kenyans who believe that we are just another grouping of politicians that will be encumbered by the usual difficulties that politicians are encumbered with ordinarily. There are those who are right now clouded by the controversy that has beset this process for years. I just want to tell fellow Kenyans that making a constitution is neither a church service nor a wedding. It is a difficult task that involves negotiation for configuration of state power. Anything that involves configuration of state power cannot be expected to be easy. Sometimes I am surprised when Kenyans express shock and surprise at the hard negotiations that have been informing this process. It must be so, because this exercise cannot be handled in any other way. We must negotiate; sometimes heatedly. Any student of constitution making will tell you that there has never been a process like this one that has been achieved easily. We are often reminded of the great character of the American Constitution. What we are never reminded of is the difficult process that the Americans went through in putting together that Constitution that we admire so much. When on 25th May, 1787, 55 delegates from 13 colonies gathered in Philadelphia, Pennsylvania, to write a constitution for the United States of America, controversy had informed the very convening of that convention. There were controversies on taxation and representation. Certain states like Rhodes Island refused even to be represented. Rhodes Island feared that the constitutional convention was going to take certain decisions on taxations on taxation that would compromise the stability of Rhodes Island as a state. There were sceptics during that process. One of them, Patrick Henry, refused to attend that convention for what he said, and I quote him: “I smell a rat in Philadelphia that tends towards retention of a monarchy, and so I shall not attend.” Thomas Jefferson, who would later on rise to become President of the USA, who was at that was the Minister of the USA to France, refused to attend and described that convention as “an assembly of demy gods that hardly represent anybody.” However, there were leaders who believed in that process and encouraged the delegates gathered in Philadelphia. One of them was John Adams, who would later become the Second President of the USA. At that time, he was Minister of the USA to Great Britain. He did not attend because of state functions, but he constantly wrote to the delegates in Philadelphia to encourage them. James Madison initiated the very idea of the 13 states meeting together to re- configure articles of confederation into a new government. He encouraged his fellow delegates throughout, even during the most difficult moments of negotiations. Alexander Hamilton was the other leader who stood up to be counted as an American, and constantly reminded the delegates that they were putting together a constitution that they should desire generations of Americans hundreds of years later to be proud of.